Feds erred in transferring wetlands permitting to FL agency, U.S. judge rules

A federal judge in Washington, D.C., has overruled the U.S. Environmental Protection Agency’s relinquishment to the state of Florida the authority to regulate development in protected wetlands, garnering praise from the environmentalists who said the outcome would protect endangered species including the Florida Panther.

“Wetlands are the lifeblood of Florida, comprising a crucial habitat component for the world’s only population of the critically endangered Florida panther and many other imperiled, rare, and endemic species, all found within one of the most biologically diverse states in the country,” Elizabeth Fleming, senior Florida representative for Defenders of Wildlife, said in a written statement.

“The court’s ruling restores essential guardrails provided by the Endangered Species Act. Requiring agencies to follow the law is a win for wildlife, protecting habitat and the public alike, as protecting our wetlands also safeguards drinking water and ecosystems across the state,” Fleming added.

The ruling had the effect of quashing two projects threatening the survival of the Florida Panther as a species.

U.S. District Judge Randolph D. Moss, in a 97-page decision handed down Thursday, accepted the environmentalists’ arguments that the transfer, hastily arranged during the closing days of the Trump administration, violated the federal Endangered Species Act and Administrative Procedures Act.

Moss wrote that, in shifting responsibility for oversight, the EPA, U.S. Fish and Wildlife Service, and additional federal and state agencies failed to account for the potential “incidental” harm to the panther and other species — meaning secondary harm caused by paving their habitat.

‘Facially and legally flawed’

The judge ruled that the agencies ceded too much authority to the Florida Department of Environmental Protection to assess how development permits would affect federally designated threatened and endangered species.

One agency assessment “makes no effort to undertake any species-specific effects analyses whatsoever,” Moss wrote. Because both were “were facially and legally flawed, the EPA unreasonably relied on those documents in approving Florida’s assumption application,” he added.

He, therefore, voided the transfer of authority to the state.

“The court does not doubt that some disruption [to development permits] will occur, but the record says little about the extent of that disruption, and, in any event, setting aside unlawful agency action almost always results in some disruption,” Moss wrote.

The judge also concluded that the federal agencies took too crabbed a view of whether the arrangement might harm sea creatures. The state had asserted that none would be affected but, given wetlands and streams that might be harmed flow into the sea, the agencies should have considered the effects on those species. Not doing so was “arbitrary and capricious.”

The ruling won’t affect permits already issued but could complicate future permitting.

Environmentalists happy

“We’re talking about the destruction of some of the last remaining habitat for one of the most endangered animals in the world,” said Bonnie Malloy, an attorney with the environmental law firm Earthjustice. “Restoring the Endangered Species Act protections will ensure that these projects get the analysis and review Congress intended to protect threatened and endangered species.”

Additional reaction:

• Tania Galloni, managing attorney, Florida Earthjustice: “Protecting the nation’s biodiversity has never been more important. That’s why we’re fighting to make sure state programs comply with all federal protections for endangered species.”
• Rhonda Roff, Sierra Club Calusa Group, resident of the Big Cypress Seminole Indian Reservation: “When agencies entrusted with protecting critically endangered species, like our beloved state animal, the Florida panther, do their job, they protect much more than that animal. By preserving the habitat, including precious wetlands, they protect water quality, air quality, recreational open space, and even a more stable climate for humans as well.”
• Amber Crooks, Conservancy of Southwest Florida: “The Conservancy of Southwest Florida has been working to protect our wetland ecosystems and endangered wildlife of the Western Everglades for 60 years. We are thankful that this ruling will reestablish the foundational laws that help us protect this unique and critical landscape.”
• Lisa Rinaman, St Johns Riverkeeper: “St Johns Riverkeeper is pleased the court recognized that Florida can’t ignore the law when it comes to endangered species protection. Whenever the state reviews permits from people who want permission to impact our critical wetland ecosystems, they need to follow the Endangered Species Act and the Clean Water Act.”
• Sarah Gledhill, Florida Wildlife Federation: “Today’s ruling reinforces the vital importance of upholding the Endangered Species Act. By holding agencies accountable, we ensure that Florida cannot sidestep federal law in pursuit of environmental shortcuts. This victory stands as a beacon for the protection of our state’s wildlife, signaling that compliance with the ESA is non-negotiable.”
• Dr. Rachel Silverstein, Miami Waterkeeper: “Today’s ruling restores protections for Florida’s invaluable natural resources. Our wetlands are crucial to our state, and we must protect them to protect our future.”

Panther habitat

As Phoenix environmental columnist Craig Pitman reported in December, U.S. Fish and Wildlife has estimated the two projects at issue would spur vehicle traffic that could kill 25 panthers per year. Only 200 or so still exist in the wild.

One of the developers wants to build a new city, called Kingston, with 10,000 homes plus businesses in an area of Lee County designated for low-density developments to protect groundwater sources. The other project, Bellmar, would house 8,000 people near the Florida Panther National Wildlife Refuge.

Litigation remains pending on complaints seeking to enforce elements of the transfer implicating the Clean Water Act.

Additional plaintiffs include the Center for Biological Diversity, the Sierra Club, the Conservancy of Southwest Florida, the Florida Wildlife Federation, Miami Waterkeeper, and St. Johns Riverkeeper.

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